IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Craig S. Jones, et al., : 

Plaintiffs, :

v. : Case No. 2:11-cv-380

Kerry A. Allen, Plan : JUDGE MICHAEL H. WATSON

Administrator, et al., Magistrate Judge Kemp

:

Defendants. 

REPORT AND RECOMMENDATION

Plaintiffs bring this ERISA action against their former

employers as well as the plans and certain related individuals and

companies. Before the Court is Defendants’ motion for judgment on

the pleadings as to Count II of the Complaint (Doc. #86). This

motion addresses only Plaintiffs’ claim for retaliation in

violation of ERISA, 29 U.S.C. §1140. For the reasons that follow,

the Magistrate Judge RECOMMENDS that Defendants’ Motion for

Judgment on the Pleadings as to Count II of the Complaint (Docket

No. #86) be denied. 

I. Facts

Because this case is before the Court by way of a motion for

judgment on the pleadings, the only facts which the Court may

consider are those well-pleaded facts which appear on the face of

the complaint. The relevant allegations from Plaintiffs’

complaint follow. 

Plaintiffs in this action are five individuals previously

employed by Red Mortgage Capital, Inc., Red Capital Markets,

Inc., Red Capital Advisors, LLC, or Red Capital Community

Development Company, LLC, (collectively "Red Capital"). 

Plaintiffs filed this action against Red Capital, certain

severance plans, a plan administrator, and a company that

acquired Red Capital, alleging that those Defendants wrongly

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denied them benefits and otherwise infringed on their rights

under ERISA, infringed on their contractual rights, and also

retaliated against them for exercising ERISA-related rights. At

issue here is Plaintiffs’ claim that Red Capital retaliated

against them for exercising their rights under an employee

benefit plan and ERISA in violation of 29 U.S.C. §1140. 

Red Capital engages in mortgage and investment banking

activities. Between 1992 and 2003, Red Capital hired each of the

Plaintiffs. In 2004, National City Corporation ("National City")

acquired Red Capital. On December 31, 2008, Defendant the PNC

Financial Services Group, Inc. ("PNC") acquired National City,

and assumed responsibility for the administration of certain

benefit plans. 

Plaintiffs have asserted claims pursuant to various

severance plans. One such plan is the National City Corporation

Amended and Restated Management Severance Plan ("National City

Plan"). (Doc. #2, Exhs. 1 & 2.) This plan covers certain

executives of National City and its subsidiaries, including Red

Capital, and it provides for the award of severance benefits in

certain circumstances if National City incurs a "Change in

Control." (Doc. #51, Exhs. 1 & 2 at §§ 1.2 & 2.1(d)). Severance

compensation may be awarded if the “Surviving Entity terminates

the Participant’s employment during the Protection Period . . .

or if the Participant terminates his employment pursuant to

Section 3.2 . . . .” (Doc. #51, Exhs. 1 & 2 at §§ 4.1). The

Protection Period begins on the "Effective Date," which is

defined as follows: "In the event a Change in Control ultimately

results from discussions or negotiations involving the

Corporation or any of its officers or directors, the ‘Effective

Date' of such Change in Control shall be the date uninterrupted

discussions or negotiations commenced." (Id. at §2.1(i) & (u).) 

The Protection Period continues "through to the fifteenth month

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anniversary of the Implementation Date." (Id. at §2.1(m) & (u).) 

One version of the National City Plan was effective January 1,

2005 and amended the prior version. National City Corporation

subsequently signed an amended version of the National City Plan

that purported to be effective September 30, 2008.

Plaintiffs have also asserted claims pursuant to an

unwritten severance agreement that they refer to as the 2006

Severance Guaranty. 

Plaintiffs have also asserted claims in this litigation

pursuant to the Red Capital Group Management Severance Plan ("Red

Capital Plan"), although Defendants argue that Plaintiffs have

not alleged that their retaliation claim is based on the Red

Capital Plan. 

By early 2010, PNC was in active discussions about selling

Red Capital. 

On March 16, 2010, Plaintiffs and a few other individuals

“notified PNC and Red Capital that they intended to assert their

right to claim benefits under the 2005 National City Plan and/or

the 2006 Severance Guaranty (as defined below) as a result of the

PNC-National City Transaction.” (Doc. #2 at ¶32). On March 17,

2010, Defendants extended "offers of continuing employment" to

Red Capital's employees, but excluded Plaintiffs and other

individuals who had notified Defendants of their intention to

claim severance benefits. 

Defendants initially extended offers of continuing

employment to two individuals who had sent similar notices

asserting their rights under the Plans, but their notices were

not received until after March 17, 2010. Once Defendants

received their notice of intention to claim benefits, those

individuals were no longer considered for continued employment. 

The individuals who were not initially offered continued

employment were later informed that they would be retained if

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they would sign full releases of all claims under the PNC and Red

Capital severance plans. 

A March 18, 2010 email from a representative of the ORIX

investor group informed one of the Plaintiffs that the ORIX group

considered the March 16, 2010 letters to be “precursors to

litigation.” 

On March 30 and 31 of 2010, Plaintiffs notified Defendants

of their conditional resignations.1

On April 27, 2010, PNC notified Plaintiffs that their last

regularly-scheduled work day would be April 30, 2010. Plaintiffs

received their salaries through June 26, 2010. One of the

Plaintiffs, Plaintiff Poling, was informed that he was being

terminated as a consequence of his pursuit of his severance

claims and related refusal to execute a release of claims in

favor of Defendants. 

II. Procedural History

On February 10, 2012, one of the Plaintiffs, Steven R.

Russi, filed a Motion for Summary Judgment on the Retaliation

Claim. (Doc. #32). On March 19, 2012, Defendants responded and

filed a cross motion for summary judgment on the same claim. 

(Doc. ##37 & 38). On September 26, 2012, after the motions were

fully briefed, the Court issued an Opinion and Order denying both

motions, holding that there were disputed issues of fact as to

Defendants defense to Mr. Russi’s retaliation claim. (Doc. #57). 

Defendants’ affirmative defenses are not at issue in the motion

before the Court here; however, several of the Court’s legal

conclusions regarding the retaliation claim are relevant here. 

Those portions of the Opinion and Order are referred to in the

1

 Plaintiffs continued to come to work after the

“conditional” resignations, and Defendants informed Plaintiff

Russi that PNC believed those “conditional” resignations to be

ineffective. 

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discussion that follows. 

On August 16, 2013, the Court ruled on several motions

including Plaintiffs’ Motion for Partial Summary Judgment, which

the Court construed as a motion for judgment on the

administrative record. (Doc. #125 at 9). While that Opinion and

Order decided some of the factual disputes that Defendants refer

to in the motion currently before the Court, that Opinion and

Order did so using a standard of review appropriate to a motion

for judgment on the administrative record – it reviewed the

Committee’s determination for arbitrary and capricious error. 

(Doc. #125 at 18). Here the Court is not reviewing the

Committee’s determination. Rather, the Court is deciding a

motion for judgment on the pleadings. Consequently, it may not

resolve or even consider disputes of fact but, as discussed in

the section that follows, must accept as true all well-pleaded

allegations of Plaintiffs’ pleadings. Accordingly, that Opinion

and Order is not relevant to the discussion that follows. 

III. Standard for Judgment on the Pleadings

A motion for judgment on the pleadings filed under Fed. R.

Civ. P. 12(c) attacks the sufficiency of the pleadings and is

evaluated under the same standard as a motion to dismiss. 

Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.

1979). In ruling upon such motion, the Court must accept as true

all well-pleaded material allegations of the pleadings of the

opposing party, and the motion may be granted only if the moving

party is nevertheless clearly entitled to judgment. Southern

Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479

F.2d 478, 480 (6th Cir. 1973). The same rules which apply to

judging the sufficiency of the pleadings apply to a Rule 12(c)

motion as to a motion filed under Rule 12(b)(6); that is, the

Court must separate factual allegations from legal conclusions,

and may consider as true only those factual allegations which

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meet a threshold test for plausibility. See, e.g., Tucker v.

Middleburg–Legacy Place, 539 F.3d 545 (6th Cir. 2008), citing,

inter alia, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.

Ct. 1955, 167 L. Ed. 2d 929 (2007). It is with these standards

in mind that the motion for judgment on the pleadings must be

decided.

IV. Analysis 

Plaintiffs have brought a retaliation claim pursuant to

ERISA, which provides in relevant part: 

It shall be unlawful for any person to discharge, fine,

suspend, expel, discipline, or discriminate against a

participant or beneficiary for exercising any right to

which he is entitled under the provisions of an

employee benefit plan, this subchapter, section 1201 of

this title, or the Welfare and Pension Plans Disclosure

Act [29 U.S.C.A. § 301 et seq.] . . . . 

29 U.S.C.A. § 1140. 

A. Article III Standing

Defendants first argue that Plaintiffs lack Article III

standing to bring a retaliation claim. (Docket #86 at 10-13). 

It is true that plaintiffs “must possess both constitutional and

statutory standing in order for a federal court to have

jurisdiction.” Loren v. Blue Cross & Blue Shield of Mich., 505

F.3d 598, 606 (6th Cir. 2007) (citing Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534, 541 (1986)). “As the party invoking

federal jurisdiction, Plaintiffs bear the burden of establishing

standing.” Loren, 505 F.3d at 607 (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992)). In order to establish

Article III standing, a plaintiff “must allege: (1) ‘injury in

fact,’ (2) ‘a causal connection between the injury and the

conduct complained of,’ and (3) redressability.” Taylor v.

KeyCorp, 680 F.3d 609, 612 (6th Cir. 2012) (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal

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quotation marks and citations omitted)).

Defendants argue that Plaintiffs lack standing because “the

condition precedent for becoming eligible to receive change of

control severance pay was never fulfilled.” (Doc. #86 at 10). 

That statement and much of the argument that follows are premised

on the assertion that Plaintiffs lack standing because they will

not be able to recover benefits under the plans. To that extent,

the argument glosses over the fact that the deprivation of plan

benefits is not the only injury in fact which Plaintiffs allege. 

However, at the very end of their argument, Defendants discuss

more generally the requirements of Article III standing and

suggest that Plaintiffs cannot show a concrete and particularized

injury because Plaintiffs have not properly alleged that their

employment was terminated as a result of their attempt to assert

rights under ERISA. (Doc. #86 at 12). 

In order to establish an “injury in fact,” a plaintiff “must

have a ‘personal stake’ in the dispute, alleging an injury

‘particularized as to him.’” Taylor v. KeyCorp, 680 F.3d 609,

612 (6th Cir. 2012) (citing Raines v. Byrd, 521 U.S. 811, 819

(1997)). Here, Plaintiffs have alleged that upon notifying

Defendants of their intention to claim benefits, Defendants made

offers of continuing employment to all Red Capital employees

except those who had expressed an intention to claim benefits,

and that Plaintiffs ultimately lost their employment. (Doc. #2

at ¶¶ 243-44, 248). Such allegations of lost employment are

sufficient to satisfy the “injury in fact” requirement for

Article III standing. 

Nothing in Defendants’ reply brief changes this conclusion. 

There, Defendants continue to argue that Plaintiffs cannot show

injury in fact because they were not plan participants, and

because the 2005 National City Plan and the 2006 Severance

Guaranty were extinguished by the 2008 version of the National

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City Plan. Again, this argument fails to take into account that

one type of injury in fact which can support a retaliation claim

is an adverse employment action, as opposed simply to a loss of

benefits. In its September 26, 2012 Opinion and Order deciding

the cross-motions for summary judgment as to the retaliation

claim, the Court determined that Plaintiff Russi successfully

established that he was injured by an adverse employment action

including being excluded from the offer of continued employment,

and ultimately being terminated. (Doc. #57 at 17). The

Complaint makes the same allegations as to all Plaintiffs. (Doc.

#2 at ¶¶243-248). Accordingly, all Plaintiffs have alleged an

injury in fact for purposes of Article III standing. 

As to Defendants’ argument that because certain plans were

extinguished, Plaintiffs have no standing to assert a retaliation

claim, the same Opinion and Order held as follows: 

Defendants also argue Mr. Russi has only set forth a

retaliation claim pursuant to the 2005 version of the

National City Plan, which Defendants claim, was amended

in 2008. However, whether or not Mr. Russi was

entitled to benefits under the particular version of

the plan in effect, it remains true that Mr. Russi’s

letter was an effort to seek benefits pursuant to a

plan of which he was a participant. Accordingly, Mr.

Russi’s action in writing the March 16, 2010 letter was

protected by ERISA. 

(Doc. #57 at 16). The Complaint alleges that Plaintiffs were

participants of the National City Plan. Whether or not the 2008

amendment to the National City Plan was valid is a question of

fact not appropriately resolved at this stage. As a result,

there is no need to consider Defendants’ argument regarding the

existence of the 2006 Severance Plan at this time. 

Defendants do not argue that Plaintiffs have failed to

satisfy the second or third requirements for Article III

standing, but focus their arguments solely on the issue of

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whether an adequate injury in fact has been alleged. The Court

is satisfied that the allegations of the complaint are sufficient

to plead, plausibly, both causation and redressability. 

Therefore, the complaint adequately alleges that Plaintiffs have

standing under Article III to pursue their retaliation claim. 

B. ERISA Standing

In addition to Article III standing, Plaintiffs must also

have statutory standing pursuant to ERISA. Loren v. Blue Cross &

Blue Shield of Mich., 505 F.3d 598, 606 (6th Cir. 2007). ERISA

provides that only “participants,” “beneficiaries,”

“fiduciaries,” and the Secretary of Labor may bring an action to

enforce its provisions. 29 U.S.C. § 1132. ERISA defines

“participant” as “any employee or former employee ... who is or

may become eligible to receive a benefit of any type from an

employee benefit plan....” 29 U.S.C. § 1002(7); see also Swinney

v. Gen. Motors Corp., 46 F.3d 512, 518 (6th Cir. 1995). 

Defendants argue that “[t]he crucial date for determining

‘participant’ status is May 3, 2011, when Plaintiffs filed their

Complaint.” (Doc. #86 at 13). In support of this argument,

Defendants cite to Morrison v. Marsh & McLennan Companies, Inc.,

439 F.3d 295, 304 (6th Cir. 2006), which considered a claim

relating to an administrator’s refusal to supply requested

information and which considered whether the plaintiff was a

“participant” at the time of the filing of the complaint. There,

the court had already determined that the plaintiff was not a

beneficiary of the plan in question after 1999, and that she had

no statutory standing to bring a claim for refusal to provide her

with plan documents based on a request she made in 2002. The

court did, in passing, suggest that standing was determined as of

the time the plaintiff filed suit, but that clearly was not a

necessary determination based on the facts of that case.

Apart from Morrison, there are cases where the Court of

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Appeals has determined “participant” status as of the time the

plaintiff seeks to assert his or her rights pursuant to the plan

or ERISA rather than the time suit is filed. See, e.g., Jordan

v. Tyson Foods, Inc., 312 F. App'x 726, 733 (6th Cir. 2008)

(concluding that the plaintiff had statutory standing because “at

the time that he requested the relevant documents, Jordan had a

colorable claim to vested benefits under the Tyson Plan”)

(citations omitted); Moore v. Lafayette Life Ins. Co., 458 F.3d

416, 445 (6th Cir. 2006) (concluding that plaintiff had statutory

standing because the plaintiff had made “at least a colorable

claim that he was an ‘employee,’ and therefore an ERISA

‘participant,’ at the time of his disability.” (emphasis added)). 

The Court of Appeals for the Ninth Circuit has concluded

that for retaliation claims in particular, it may be unwise to

determine standing at the time the lawsuit is filed. McBride v.

PLM Int'l, Inc., 179 F.3d 737, 743-44 (9th Cir. 1999).2 This

2

 The Ninth Circuit concluded that for retaliation claims,

“participant” status should be determined as of the date of the

alleged ERISA violation: 

The concept of measuring ERISA standing at the time an

action is filed is a judicially created requirement

which is appropriate for most circumstances, but not

for the situation we face in this case. Section 1140

forbids employers and other ERISA entities from

interfering with certain protected rights and is

enforceable through ERISA's civil enforcement mechanism

in section 1132. Depriving a plaintiff of standing to

sue under ERISA for his employer's clear violation of

section 1140 would, in effect, make standing contingent

upon the occurrence of subsequent events entirely

within the control of the employer. “[I]t would seem

more logical to say that but for the employer's conduct

alleged to be in violation of ERISA, the employee would

be a current employee with a reasonable expectation of

receiving benefits, and the employer should not be able

through its own malfeasance to defeat the employee's

standing.” Christopher v. Mobil Oil Corp., 950 F.2d

1209, 1221 (5th Cir. 1992) (citing Amalgamated Clothing

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Court agrees with that analysis, and finds nothing in the

decisions within this Circuit to the contrary. Accordingly, the

appropriate date for determining Plaintiffs’ status as

“participants” for purposes of this retaliation claim is the date

upon which Plaintiffs exercised their ERISA rights. Plaintiffs

have alleged that they were current employees and participants of

the National City Plan at that point. Accordingly, Plaintiffs

have properly alleged statutory standing. 

The Court notes that it is likely that even if Plaintiffs’

status as “participants” were determined as of the date of filing

the complaint, Plaintiffs would still qualify as “participants”

for purposes of ERISA standing. “[A] former employee has

standing as a ‘participant’ where, but for the alleged

misrepresentations or breaches of duty by fiduciaries, the

employee ‘would have been in a class eligible to become a member

of the plan.’” Shahid v. Ford Motor Co., 76 F.3d 1404, 1410-11

(6th Cir. 1996) (quoting Swinney v. Gen. Motors Corp., 46 F.3d

512, 519 (6th Cir. 1995) (additional citations omitted)). In

Shahid the Court of Appeals held that the plaintiff had standing

as a “participant” because if the defendant had not improperly

terminated her or induced her to delay her acceptance of the plan

at issue, she may have become eligible to participate in the

plan. Id. at 1411. It would undermine ERISA’s intent to deny

standing to former employees who became former employees as a

& Textile Workers v. Murdock, 861 F.2d 1406, 1418 (9th

Cir. 1988)). . . . We hold that under section 1140,

participant status must be adjudged at the time of the

alleged ERISA violation. Standing under section 1140

does not depend upon whether the former employee seeks

to or could obtain reinstatement to covered employment. 

The continued existence of a plan is not essential to

the enforcement of the goals section 1140 was designed

to address. See Christopher, 950 F.2d at 1221.

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result of the employer’s retaliation. 

Here, Plaintiffs have alleged that they were employees

covered by the National City Plan at the time of their March 16,

2010 letters expressing their intent to claim benefits and that

their employment did not end until April or May of 2010. 

Defendants argue that Plaintiffs were not “participants” at the

time they filed the present lawsuit because they were former

employees and because the Protection Period under the National

City Plan had ended and, accordingly, “no Plaintiff can now ever

become eligible for severance benefits from either Plan.” (Doc.

#86 at 15). According to Defendants, after the Protection Period

expired on March 31, 2010, “Plaintiffs lost their potential

status as Plan ‘participants.’” (Doc. #86 at 15). Based on this

reasoning, as of April 1, 2010 (the day after the Protection

Period expired), Plaintiffs were still employees, but were

employees who, according to Defendants, could no longer seek

benefits for the Change in Control that occurred when PNC

acquired National City on December 31, 2008. 

This argument is not persuasive. Regardless of whether

Plaintiffs could seek benefits for that particular Change in

Control, Plaintiffs were employees covered by the National City

Plan at that point such that, if there were another Change in

Control, Plaintiffs could have potentially been eligible for

benefits. Accordingly, as of April 1, 2010, Plaintiffs would

have been “participants” for standing purposes. See, e.g.,

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18 (1981)

(stating that an employee currently in covered employment fits

within the definition of a “participant”). The only thing that

changed between April 1, 2010 and May 3, 2011 was the allegedly

retaliatory termination of Plaintiffs’ employment. 

Defendants urge the Court to find that even if Defendants’

action in terminating Plaintiffs was in retaliation for

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Plaintiffs’ having exercised their rights pursuant to ERISA and

the plans, the termination should deprive Plaintiffs of standing

to sue for the retaliation. The Court of Appeals’ reasoning in

Swinney, 46 F.3d at 518-19, and Shahid, 76 F.3d at 1410-11

preclude that conclusion. While it is true that under the terms

of the National City Plan, participants could not be awarded plan

benefits based on terminations that occurred outside the

Protection Period, the question here is a different one - namely,

whether Plaintiffs may obtain relief if Defendants retaliated

against them for asserting their rights under the plans or ERISA. 

Nothing in ERISA’s retaliation provision requires an adverse

employment action to occur within the time frames set forth in

the plan in order to be actionable. An action for retaliation is

not a claim for benefits made to the plan administrator, but a

distinct cause of action. It would largely defeat the purpose of

the statute to allow a defendant to deprive a plaintiff of

standing and, as a result, defeat a retaliation claim simply by

engaging in retaliatory behavior. 

Defendants also argue that both the 2005 National City Plan

and the 2006 Severance Guaranty “ended” on September 30, 2008

when the National City Plan was amended. (Doc. #86 at 13). As

discussed above, whether or not the 2008 amendments to the

National City Plan were valid, the National City Plan continued

to exist, and accordingly, Plaintiffs were, at the very least,

participants in the National City Plan at the time of the adverse

employment action. 

C. Elements of Retaliation Claim

Next, Defendants reassert the argument (which they also made

in their cross motion for summary judgment) that Plaintiffs have

not adequately alleged the elements of a retaliation claim. 

Those arguments are no more persuasive in this context. 

First, Defendants argue that Plaintiffs were not exercising

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rights to which they were entitled under the provisions of a

plan. In support of this argument, Defendants point to a

Southern District of California case involving former employees

of Defendants who brought ERISA suits under the same plans. In

that case, Bluhm v. PNC Financial Services Group, Inc., USDC,

S.D. Cal. Case No. 11-cv-313-GPC, the court determined for

purposes of the pending motion for summary judgment that the

“Committee members reasonably determined that the 2005 Plan and

the alleged Interim Agreement were properly amended under Section

2.1(i) of the 2005 Plan.” (Doc. #86-1 at 17). Relying on Bluhm,

Defendants argue that Plaintiffs had no rights under the 2005

version of the National City Plan because it was properly amended

in 2008. 

For purposes of the motion for judgment on the pleadings

before the Court here, however, the Court is guided by the

allegations in the complaint. Viewing Defendants’ argument in

that context, it has not yet been determined for purposes of

these Plaintiffs’ retaliation claim whether the 2008 amendment to

the National City Plan was proper. Further, even if it was,

Plaintiffs had rights under whichever version of the National

City Plan was in effect. This Court has already determined that

Plaintiff Russi’s March 16, 2010 letter was an “effort to seek

benefits pursuant to a plan of which he was a participant.” 

(Doc. #57 at 16). The same reasoning applies to the other

Plaintiffs as well. 

Defendants also argue that there was no adverse employment

action because Defendants offered to keep Plaintiffs if they

would sign a release of all employment-related claims, including

any claims to severance benefits. They contend what really

happened was that they failed to hire the Plaintiffs, not that

they terminated Plaintiffs’ employment. Both of these arguments

were also addressed and decided by the Court in its September 26,

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2012 decision. As to the failure-to-hire argument, the Court

held that Defendants terminated Plaintiffs, that the termination

was made before the Purchaser purchased portions of Red Capital,

and for that reason it “was more like a termination or

discontinuation of employment rather than a failure to hire.” 

(Doc. #57 at 17). As to the release-of-employment-related-claims

argument, the Court held that “it would run afoul of the intent

of §510 to immunize adverse employment actions which were

conditioned on ceasing the ERISA-protected conduct that prompted

the adverse employment action in the first place.” (Doc. #57 at

18). For all of these reasons, the Court concludes that

Plaintiffs’ allegations are sufficient to state a claim for

retaliation under ERISA. 

D. Remedy

Lastly, Defendants argue that Plaintiffs cannot seek money

damages as relief for their retaliation claim. Plaintiffs

respond that they are not seeking severance benefits as a part of

their retaliation claim but rather equitable relief including

reinstatement. (Doc. #102 at 21). It appears that the parties

are in agreement that Plaintiffs may only seek equitable relief

on their retaliation claim, and there is no need to discuss the

issue of remedy further. 

V. Conclusion

For all the foregoing reasons, the Magistrate Judge

concludes that none of Defendants’ arguments about Article III

standing, ERISA standing, or the adequacy of the complaint to

state a retaliation claim under §1140 have merit. Therefore, the

Magistrate Judge RECOMMENDS that Defendants’ Motion for Judgment

on the Pleadings as to Count II of the Complaint (Doc. #86) be

DENIED. 

VI.

If any party objects to this Report and Recommendation, that

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party may, within fourteen (14) days of the date of this report,

file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection

is made, together with supporting authority for the objection(s). 

A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal, the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

/s/ Terence P. Kemp 

United States Magistrate Judge

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